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Ethical rules for social media gain clarity

On March 10, 2015, the New York County Lawyers Association (“NYCLA”) weighed in on the ethical implications for lawyers who use social media websites for professional self-promotion. In Formal Opinion 748, NYCLA addressed the widespread use of LinkedIn and specifically examined (1) whether a LinkedIn profile is considered “Attorney Advertising;” (2) when it is appropriate for attorneys to accept endorsements and recommendations; and (3) what information attorneys should include and exclude from social media profiles. Although the NYCLA opinion does not resolve all open questions about the nature and extent of the information attorneys can post on LinkedIn without running afoul of the New York Rules of Professional Conduct, it answers significant questions left open by two Committees of the New York State Bar Association (NYSBA).

New York Attorneys May Ethically List Practice Areas Under LinkedIn Headings “Products and Services” or “Skills and Expertise”

The NYSBA Committee on Professional Ethics in Formal Opinion 972 and the NYSBA Commercial and Federal Litigation Section in the Social Media Ethics Guidelines (the “Social Media Guidelines”) counseled that lawyers are ethically prohibited from identifying themselves under “pre-defined” headings as “specialist” unless appropriately certified. (See my previous blog post “Social Media for Attorneys: Good Business or Ethical Minefield?” for a discussion of the Social Media Ethics Guidelines.) Neither committee, however, addressed whether a lawyer or law firm may list practice areas under other headings such as “Products and Services” or “Skills and Expertise.” Formal Opinion 748 addresses this gap in the guidance and concludes that, provided that the word “specialist” is not used, lawyers may list skills or practice areas under LinkedIn’s predefined headings “Experience” or “Skills” without violating New York Rule of Professional Conduct 7.4, which prohibits an attorney from calling herself a “specialist” or representing that she “specializes in a particular field of law” unless the attorney has the appropriate certification. But, Formal Opinion 748 warns that attorneys should “monitor their LinkedIn pages at reasonable intervals to ensure that other are not endorsing them as specialist.” The Opinion notably does not define what constitutes a reasonable interval.

Attorneys Are Responsible For “Periodically” Monitoring Their LinkedIn Profiles

Formal Opinion 748 also addresses the ethical considerations relating to endorsements or recommendations that originate from other users but appear on an attorney’s LinkedIn profile, and concludes that because a user has control over the content of her profile, she is responsible for monitoring its content for truthfulness. “While we do not believe that attorneys are ethically obligated to review, monitor and revise their LinkedIn sites on a daily or even a weekly basis, there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals.” Here too, it remains unclear what constitutes a reasonable interval except that neither daily nor weekly monitoring seems to be required.

Many Attorneys’ LinkedIn Profiles Will Be Treated As “Attorney Advertising”

Formal Opinion 748 advises that a New York attorney’s LinkedIn profile that includes information other than his or her educational and employment history — such as a detailed description of practice areas and work done in prior employment — should include the words “Attorney Advertising.” A LinkedIn profile also should have the disclaimer, “[p]rior results do not guarantee a similar outcome,” if it includes: “(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services.”

This expands upon the guidance set forth in the NYSBA’s Social Media Guidelines, which state that social media used “primarily” for business purposes is subject to the attorney advertising and solicitation rules. Formal Opinion 748 does not suggest how attorneys should navigate the pre-defined fields on LinkedIn and other social media websites to include the required information.

The format and content of social media websites constantly is in flux and attorneys and bar associations are struggling to keep pace. Attorneys who use these websites must stay abreast of the ethics guidance to ensure that they are complying with the Rules of Professional Conduct. But, in this ever-developing area where issues of professional ethics intersect with the Internet, even the most diligent attorneys should proceed with caution.

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